1 Wash. Rev. Code §88.46.040(3) (1994).

2 Wash. Admin. Code §§317–21–130 to 317–21–540 (1999). But see note 37 infra (enforcement of regulations suspended). Ships failing to comply with these regulations are subject, by the parent statute, to penalties, restrictions on operation in state waters, or denial of entry to state waters. See Wash. Rev. Code §§88.46.070-.090 (1994).

3 See United States v. Locke, 120 S.Ct. 1135, 1142 (2000).

4 Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Lowry, 947 F.Supp. 1484 (W.D.Wash. 1996).

5 Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998). With one dissent, the Ninth Circuit denied a petition for rehearing en banc. See Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Locke, 159 F.3d 1220 (9th Cir. 1998).

6 United States v. Locke, 120 S.Ct. at 1152.

7 Id. at 1141.

8 Id.; see Canada-U.S. Agreement for a Cooperative Vessel Traffic Management System for the Juan de Fuca Region, Dec. 17, 1979, 32 UST 377, TIAS No. 9706, 1221 UNTS 67.

9 United States v. Locke, 120 S.Ct. at 1141.

10 Mat 1143.

11 See id. at 1143–45.

12 33 U.S.C. §2718(c) (1994); see Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d at 1058–60, 1062. 1S 435 U.S. 151 (1978).

14 See United States v. Locke, 120 S.Ct. at 1145–47.

15 The pertinent provisions are codified at 33 U.S.C. §1223(a) (1) (1999 ed. Supp. Ill) (referred to by the Supreme Court as Title I), and 46 U.S.C. §3703 (a) (1994) (referred to as Title II). See United States v. Locke, 120 S.Ct. at 1144.

16 United States v. Locke, 120 S.Ct. at 1149; see Ray, 435 U.S. at 158–78. The first half of the Ray formula is based on Title I of PWSA; the second derives from Title II. See note 15 supra.

17 United States v. Locke, 120 S.Ct. at 1149.

18 Id. at 1149–50.

19 Id. at 1150. Readers knowing something of the law of the sea will be aware that a somewhat similar construction is put to use on the international level. The rules regarding the right of innocent passage through the territorial sea prohibit coastal state regulation that hampers innocent passage or has the practical effect of denying or impairing such passage—in particular, coastal state regulation of the design, construction, manning or equipment of foreign ships unless giving effect to generally accepted international standards. These rules do not, however, restrict coastal state conditions for port entry or apply to those internal waters in which there is no right of innocent passage. See United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 8, 17, 21 (2), 24(1), 25(2), 1833 UNTS 397, reprinted in 21 ILM 1261 (1982). For present purposes, what is most interesting about the international formula is its absence (the dog that does not bark) within the analysis in the Locke opinion itself.

20 United States v. Locke, 120 S.Ct. at 1150.

21 Id. The Washington requirements were read as addressing operations and personnel-qualifications matters falling within PWSA Tide II, see 46 U.S.C. §3703 (a) (1994). Justice Kennedy found support for this conclusion in federal regulations fixing crew-training requirements, 46 C.F.R. pts.10, 12, 13, 15(1999). The International Convention of Standards of Training, Certification and Watchkeeping for Seafarers, with Annex, 1978, S. Treaty Doc. No. 96–1, C.T.I.A. No. 7624, also addressed crew-training and qualification requirements.

22 United States v. Locke, 120 S.Ct. at 1151.

23 Id. at 1151–52; see 46 U.S.C. §6101 (1994); see also id. §6102 (federal responsibility for devising uniform system of state marine-casualty reporting).

24 In Ray, by contrast, the Supreme Court split complicatedly. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 153 (1978) (syllabus).

25 Justice Kennedy briefly mentioned “[i]llustrative . . . treaties and agreements,” United States v. Locke, 120 S.Ct. at 1145, and also noted the United States’ argument that “these treaties . . . have pre-emptive force over the state regulations in question here.” Id. “We need not reach that issue . . . because the state regulations . . . are preempted by federal statute and regulations.” Id. It was possible, Kennedy allowed, that treaty terms might become pertinent at later stages in the litigation. Id.

26 See id. at 1145, 1149, quoting Ray, 435 U.S. at 166, 168.

27 22 U.S. (9 Wheat.) 1 (1924).

28 53 U.S. (12 How.) 299 (1852). For the Locke discussion of Gibbons and Cooley, see 120 S.Ct. at 1143.

29 331 U.S. 218 (1947).

30 See id. at 230–36. Justice Kennedy found it necessary to proceed at some length to distinguish Rice from Locke itself. See United States v. Locke, 120 S.Ct. at 1147–48. Ostensibly, Rice was relevant because Ray briefly quoted from it (see Ray, 435 U.S. at 157, quoting Rice, 331 U.S. at 230) and because in Locke itselt, the courts below and the State of Washington had invoked it. See United States v. Locke, 120 S.Ct. at 1147. It is not obvious, however, why this reliance, in and of itself, justifies using three paragraphs of the Locke opinion to parse Rice. But see id. (.Rice will not be studied “in detail”).

31 312 U.S. 52 (1941).

32 See id. at 62–68.

33 United States v. Locke, 120 S.Ct. at 1148.

34 Id.

35 Id.

36 Id. Interestingly, in Crosby v. National Foreign Trade Council, 120 S.Ct. 2288 (2000), see Brannon P., Denning & Jack H., McCall, Case Report: Crosby v. National Foreign Trade Council, 94 AJIL 750 (2000)Google Scholar, in which Massachusetts’s “Burma law” was held to be preempted by federal statutes. Justice Souter’s majority opinion cited Hines (see Crosby, 120 S.Ct. at 2294), but only in connection with standard preemption formulas. Like Justice Kennedy in Locke, Souter treated the case as an ordinary preemption challenge. See Crosby, 120 S.Ct. at 2294 n.8 (reserving question of “presumption against preemption,” citing Locke) (emphasis added).

37 See United States v. Locke, 120 S. Ct. at 1148, 1152. Justice Kennedy was notably careful, however—especially in concluding the opinion—not to press the point. See also State v. Stepansky, 761 So.2d 1027, 1034 (Fla. 2000) (relying on limited preemption in Locke and upholding state law providing for state prosecution of crimes committed on board Florida-based cruise ships at sea). A case report on Stepansky is scheduled to appear in the next issue of the Journal.

38 On June 12, 2000, the Washington State Department of Ecology suspended enforcement of the regulations at issue in Locke pending adoption of new regulations. See Int’l Ass’n of Indep. Tanker Owners (Intertanko) v. Locke, 216 F.3d 880 (9th Cir. 2000).

39 See Brief on the Merits for Petitioner Intertanko at 6, United States v. Locke, 120 S.Ct. 1135 (2000) (No. 98–1706), available in 1999 WL 966536.

40 See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.7 (1983); 13B Charles, Alan Wright, Arthur R., Miller, & Edward H., Cooper, Federal Practice & Procedure §3574 (2d ed. 1984)Google Scholar.

41 See 46 U.S.C. §§3713, 3718 (1994) (PWSA civil-penalty remedy for violation of federal requirements enforceable by the United States); Chapman v. Houston WRO, 441 U.S. 600, 613 (1979) (Supremacy Clause “is not a source of any federal rights”).

42 See, e.g., Touche Ross & Co. v. Redington, 442 U.S. 560 (1979). See generally Richard H., Fallon, Daniel J., Meltzer, & David L., Shapiro, Hart and Wechsler’s the Federal Courts and the Federal System 839–46 (4th ed. 1996)Google Scholar.

43 See, e.g., Lividas v. Bradshaw, 512 U.S. 107 (1994); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989). See generally Monaghan, Henry, Federal Statutory Review Under Section 1983 and the APA, 91 Colum. L. Rev. 233 (1991)CrossRefGoogle Scholar.

44 See Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982); Monroe v. Pape, 365 U.S. 167 (1961).

45 See Mitchum v. Foster, 407 U.S. 225 (1972).

46 209 U.S. 123 (1908). On color of law, See Steven L., Winter, The Meaning of “Under Color of” Law, 91 Mich. L. Rev. 323 (1992)Google Scholar.

47 On Ex parte Youngas a Section 1983 case, See David P., Currie, Ex parte Young After Seminole Tribe, 72 N.Y.U. L. Rev. 547 (1997)Google Scholar. See generally Ernest A., Young, State Sovereign Immunity and the Future of Federalism, 1999 Sup. Ct. Rev. 1 Google Scholar.

48 See Blessing v. Firestone, 520 U.S. 329, 340–41 (1997).

49 See Bacardi Corp. v. Domenech, 311 U.S. 150, 161–63 (1940).

50 See Blessing, 520 U.S. at 341; Lividas v. Bradshaw, 512 U.S. 107, 132–33 (1994).

51 See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 512–14 (1990); Clearfield Trust Co. v. United States, 318 U.S. 363, 366(1943).

52 See Blessing, 520 U.S. at 340.

53 See generally Tuck, Richard, Philosophy and Government, 1572–1651, at 154–201 (1993)Google Scholar.